R v Daphney
[2010] QCA 149
•16/06/2010
[2010] QCA 149
COURT OF APPEAL
McMURDO P
CHESTERMAN JA
WHITE JA
CA No 97 of 2010
SC No 469 of 2004
THE QUEEN
v
HARRY JUNIOR GRAHAM DAPHNEY Appellant
BRISBANE
DATE 16/06/2010
THE PRESIDENT: Call the first case.
ASSOCIATE: Queen against Harry Junior Graham Daphney appeal number 97 of 2010.
THE PRESIDENT: Mr Daphney? Can you hear me?
APPLICANT: Yes. Yes, your Honour.
THE PRESIDENT: You're the applicant in these matters, and I'll let you remain seated so that we can see you, because if you stand up we won't be able to see you, so if you‑‑‑‑‑
APPLICANT: Yeah.
THE PRESIDENT: ‑‑‑‑‑could remain seated. You're the applicant in these matters and you're appearing for yourself today? Could - can you hear me?
APPLICANT: Yeah.
THE PRESIDENT: Yes. You're the applicant and you're applying for an extension of time to appeal against your conviction and for leave to appeal against sentence, correct?
APPLICANT: Yeah.
THE PRESIDENT: Yes, all right. Would you announce your appearance please?
MR BOYLE: If the Court pleases, my name is Boyle, B-O-Y-L-E, initials DC, instructed by the Office of the Director of Public Prosecutions, I appear on behalf of the respondent.
THE PRESIDENT: Yes, thank you, Mr Boyle. Now‑‑‑‑‑
APPLICANT: Your Honour?
THE PRESIDENT: Yes, Mr Daphney, we have your‑‑‑‑‑
APPLICANT: Um‑‑‑‑‑
THE PRESIDENT: Do you want to say something first?
APPLICANT: Well I - I got nobody to - to talk for me. I have a friend that is - he went and - by the name of Martin [Indistinct]. He was the bloke that did my - did my appeal, but he's got transferred to Woodford and I got a nephew in Melbourne - been helping me with my case, explaining things to me - and - as I don't fully understand, your Honour. I wouldn't know where to start.
THE PRESIDENT: Well, Mr Daphney, we do have your written outline of argument and we've got quite a bit of material. You should have - did you get Mr Boyle's outline of argument and authorities sent to you?
APPLICANT: My nephew got all the paperwork. He's the one been helping me.
THE PRESIDENT: Yes. Yes, well look, what we have is we have the material that's been before the various Judges, where you pleaded guilty, and your sentencing remarks - the sentencing remarks from the Judge. We've obtained a copy of the indictment as well because there were some things we're concerned about‑‑‑‑‑
UNIDENTIFIED SPEAKER: [Indistinct]
THE PRESIDENT: ‑‑‑‑‑and there are a few things that we want to discuss with Mr Boyle. There is‑‑‑‑‑
UNIDENTIFIED SPEAKER: [Indistinct] their example [indistinct]
THE PRESIDENT: There is a point where we're a little bit concerned about.
UNIDENTIFIED SPEAKER: [Indistinct]
THE PRESIDENT: And we want to hear that‑‑‑‑‑
APPLICANT: [Indistinct] I'm understanding this, your Honour.
UNIDENTIFIED SPEAKER: [Indistinct]
CHESTERMAN JA: There's some interference.
UNIDENTIFIED SPEAKER: [Indistinct]
APPLICANT: That's right. I‑‑‑‑‑
THE PRESIDENT: There's a bit of noise in the background there. Is that some noise at the prison; is it?
UNIDENTIFIED SPEAKER: [Indistinct]
APPLICANT: Yes.
THE PRESIDENT: All right. We might just wait for a minute till that's stopped. Thank you. All right. So we want to ask Mr Boyle about some technicalities. Now you obviously are having‑‑‑‑‑
WHITE JA: There's still noise.
UNIDENTIFIED SPEAKER: [Indistinct]
CHESTERMAN JA: I think it's a crossed line, actually.
THE PRESIDENT: Can you tell me, Mr Daphney, is that background noise something we can hear at the prison or is it a crossed telephone line?
APPLICANT: It's coming from the video.
CHESTERMAN JA: It's coming from the video.
THE PRESIDENT: Oh, right. We have a crossed line; do we? We might need to stop the link and try again.
ASSOCIATE: Yes, your Honour.
THE PRESIDENT: Before we do that could I just say this, Mr Boyle: we are concerned about an issue which we noticed when we were preparing this matter. The bulk arraignment - if you have a look at that, before Judge Pack, he was convicted - arraigned in bulk and convicted only in respect of two rapes and not on three rapes.
UNIDENTIFIED SPEAKER: [Indistinct]
THE PRESIDENT: That's happened twice. And then when the allocutus was administered he was convicted only on two rapes and not on three rapes. So ‑‑‑‑‑
UNIDENTIFIED SPEAKER: [Indistinct]
THE PRESIDENT: I think that you've got a major fundamental problem here in respect of the rape convictions.
MR BOYLE: Yes. I did pick that up, your Honour.
THE PRESIDENT: So if you - they're just ringing again but if you look at the proceedings on the 10th of April before Judge Pack. I'll take you to that. Is there somebody in the room with you Mr Daphney who's speaking. We're just having some trouble with a lot of background noise there.
APPLICANT: No, your Honour, there's noise coming from the video.
THE PRESIDENT: The noise is coming from the video.
APPLICANT: [indistinct].
THE PRESIDENT: Yes, all right. Well, if you have a look at page 3, Mr Boyle, on the 10th of June. You see that where the associate arraigns him. I've got the wrong one, I'm sorry, that's the 10th of June.
MR BOYLE: 10th of April, your Honour.
THE PRESIDENT: 10th of April. Yes, 10th of April, page 2. The associate reads out two counts of rape, do you see that, at about line 45?
MR BOYLE: Yes, your Honour.
THE PRESIDENT: And over the page, again, it's two counts of rape and then he pleads guilty and then he's convicted of - or the allocutus is administered, two counts of rape. When it comes up before Judge Wall for sentence he's not re-arraigned in respect of the nine-count indictment only in respect of the single-count indictment.
MR BOYLE: That's correct, your Honour.
THE PRESIDENT: So I think that, in itself, is probably going to require an extension of time to be granted in respect of the convictions for the rape and for the sentence in respect of the four counts when the 15 years was given because what's happened is, the Judge has sentenced but it's impossible to know which of the three rapes he pleaded guilty to before Judge Pack and then he's sentenced by Judge Wall for three rapes so it's impossible to say that hasn't affected the sentencing discretion, I would have thought. So it, at least, warrants some extension of some - an extension of time for this matter to be aired and for this fellow to, hopefully, have legal representations. Once this point is raised Legal Aid, hopefully, would appear for him.
The only other possibility is that it's an error in the transcript but that seems unlikely and it's probably unlikely that the actual tapes still exist from 2006. I just can't see‑‑‑‑‑
MR BOYLE: Yes, it seems to be in three places that it refers to two counts of rape.
THE PRESIDENT: Two counts. That's right. So I think it's a problem that's arisen out of the bulk arraignment procedure that was followed and no-one picked it up at the time.
MR BOYLE: That's so, your Honour.
THE PRESIDENT: And never corrected. I can't see how you can - how, now that the Court's become aware of this error - it is something that's going to have to be corrected.
MR BOYLE: Yes. It would seem that all of the rapes are identical in what they were in terms of digital.
CHESTERMAN JA: I know but which of the three was he convicted of.
MR BOYLE: Yes, and I'm not sure that the facts particularly distinguish between‑‑‑‑‑
CHESTERMAN JA: No, the counts are worded identically. The counts for rape are worded identically so it's impossible to know what he's pleaded to.
MR BOYLE: That's so.
CHESTERMAN JA: What he's arraigned on for that matter.
WHITE JA: And the prosecutor's recitation of the facts were pretty - in bulk, as well, with respect to the rapes.
MR BOYLE: Yes, that's so.
WHITE JA: It's a very broad description.
CHESTERMAN JA: I notice, in fact, he got five terms of 15 years.
THE PRESIDENT: Oh, were there five, were there?
CHESTERMAN JA: There are five. On counts 1, 3, 4, 5, 6 and 7.
THE PRESIDENT: Right. So it seems that - so subject to what you would wish to say, yes. It seems to me that we should grant an extension of time to appeal - grant an extension of time to appeal against conviction in respect of the three rape counts and in respect of the sentence imposed. I don't see that there's any way around it.
MR BOYLE: I don't think I could submit against that, your Honour. He's clearly sentenced for 15 years on three counts of rape. I don't think I can say anything further, your Honour.
THE PRESIDENT: Mr Daphney, you may not have followed that conversation that I've had with Mr Boyle but there was a mistake, it appears from the transcript, when you pleaded guilty to the nine-count indictment. You actually pleaded guilty only to, according to the transcript, at least, two counts of rape not three and you were subsequently sentenced on three counts and because of that technicality which has emerged that's really made everything that follows something that needs to be reviewed so the Court has decided to grant your extension of time to appeal against the three rape convictions and to apply for leave to appeal against your sentence. Do you understand that?
APPLICANT: Conviction, your Honour.
THE PRESIDENT: Do you understand what I've said.
APPLICANT: A little bit, your Honour.
THE PRESIDENT: You understand a little bit.
APPLICANT: Yes.
THE PRESIDENT: Well, what it means you're going to - even though so much time has passed because of a very significant technicality - or imperfection in the process, something that went wrong in the sentencing process in the plea of guilty that's - that's tainted - made everything that followed that a bit questionable so we're giving you the extension of time in respect of some of the convictions, that is, the rape cases and in respect of your sentence and that means you should then apply for legal aid; do you understand what I mean by that. You can do that within the prison. You must immediately apply for legal aid and we will come back and consider the appeal against conviction and your application for leave to appeal against the sentence.
APPLICANT: [indistinct] that's why I wanted my nephew [indistinct]. He know more than me so he can explain in a easy way, sort of thing.
THE PRESIDENT: Well, you're obviously having some trouble understanding what's happening.
APPLICANT: Yes.
THE PRESIDENT: I'll just try and explain it again, right. Now it's many years, of course, since you pleaded guilty and sentenced. You're very well out of time to appeal and that's why you needed the extension of time, right.
APPLICANT: [indistinct].
THE PRESIDENT: Sorry?
APPLICANT: Yes.
THE PRESIDENT: Yes, all right. Now, ordinarily, that'd be very hard for you to manage after so many years but we've looked at the record and found there was a problem and we're going to give you the extension of time to appeal. Now that doesn't mean you're going to - that doesn't mean you're going to win your appeal. That still has to be argued but what it means is you can now apply for legal aid and because you've got the extension of time you will probably get legal aid but you must apply for it. Do you understand?
APPLICANT: Yes, your Honour.
THE PRESIDENT: Yes. What do you understand?
APPLICANT: Get somebody.
THE PRESIDENT: Yes, you have to fill out a form or you get the prison people to help you fill out a form for legal aid. You should do that straight away, today if you can.
APPLICANT: Yes.
THE PRESIDENT: All right. Now I will ask the registrar to contact legal aid and make sure someone comes and sees you to fill out a form for legal aid but try and do that yourself if you can do that today, all right?
APPLICANT: Yes.
THE PRESIDENT: Now, is there anything else - at this stage, we're only giving you leave to appeal your conviction on the three rape counts not on the other counts. Did you want to say anything more about your conviction - your application to extend time to appeal against conviction?
APPLICANT: I don't understand. This is my first time in the Court.
THE PRESIDENT: Well, it's not, unfortunately, but it might be your first time in this Court on your own. All right. Okay. All right. Now what are you going to do when you finish here today? Fill out a form.
APPLICANT: [indistinct].
THE PRESIDENT: Yes. Fill out‑‑‑‑‑
APPLICANT: [indistinct].
THE PRESIDENT: Legal aid, yes.
APPLICANT: Legal aid.
THE PRESIDENT: All right.
CHESTERMAN JA: Mr Boyle, can you tell us did Daphney seek extension - has he lodged an application for leave to appeal against sentence and an appeal against conviction.
THE PRESIDENT: Yes.
MR BOYLE: As I understand it, your Honour, yes.
THE PRESIDENT: Yes, he has.
CHESTERMAN JA: Was that on 15 April this year? What I'm asking is if we extend time to 15 April 2010 for appealing against the three rape convictions and the leave to appeal against the sentences, will that meet the situation?
MR BOYLE: I think that would, your Honour.
THE PRESIDENT: The order of the Court is that the applicant's application to extend time is granted in that time is extended for him to appeal against his conviction in respect of the three counts of rape and to apply for leave to appeal against sentence. Time is extended until the 16th of April 2010.
The application for leave to appeal against sentence relates to all sentences imposed on him. The registrar is to forward all relevant papers to the Public Defender, Legal Aid Queensland and request that an officer from Legal Aid Queensland attend upon Mr Daphney in the Townsville Correctional Centre with an application for legal aid. Yes, nothing further in respect of that matter?
MR BOYLE: Nothing, thank you.
THE PRESIDENT: I direct that a transcript be prepared of today's hearing.
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